Montano v. Nm Real Estate Appraiser's Bd.

• Decision Date: 15 December 2008
• Docket Number: No. 27,374.,27,374.
• Parties: Salomon MONTANO, Petitioner-Appellee, v. NEW MEXICO REAL ESTATE APPRAISER'S BOARD, Regulation and Licensing Department, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

200 P.3d 544

2009 NMCA 009

Salomon MONTANO, Petitioner-Appellee, v. NEW MEXICO REAL ESTATE APPRAISER'S BOARD, Regulation and Licensing Department, Respondent-Appellant.

No. 27,374.

Court of Appeals of New Mexico.

December 15, 2008.

Tibo J. Chavez, Jr., Belen, NM, for Appellee.

Gary K. King, Attorney General, Corliss Thalley, Assistant Attorney General, Santa Fe, NM, for Appellant.

OPINION

KENNEDY, Judge.

{1} This case arises from an administrative appeal of the decision of the New Mexico Real Estate Appraiser's Board (the Board) to suspend the license of Petitioner/Appellee (Licensee) for two years. Licensee appealed to the district court, which reversed.

{2} The Board makes several arguments on appeal to this Court. We aggregate the Board's arguments for convenience, as follows: (1) the district court failed to limit its review to the proper appellate standard of review and instead considered additional evidence; (2) a settlement agreement between the Board and Licensee, including its enforcement provisions, was a valid contract which the district court should have enforced; and (3) the Board's findings were supported by substantial evidence. Persuaded by the Board's arguments, we reverse and remand to the district court.

FACTS AND PROCEDURAL HISTORY

{3} The Board is an administrative agency created pursuant to the Real Estate Appraisers Act (the Act), NMSA 1978, §§ 61-30-1 to -24 (1990, as amended through 2005) with the purpose of regulating persons who develop and communicate appraisals to the public. §§ 61-30-2(B), -4(A). The Board is vested with the responsibility of holding hearings to determine whether an appraiser has violated a provision of the Act. If so, the Board may suspend or revoke the appraiser's license. § 61-30-15.

{4} Licensee is a licensed real estate appraiser, subject to the provisions of the Act. Licensee became the subject of a series of complaints, the substance of which is irrelevant to this case, prompting the Board to initiate disciplinary action in 2004. The parties entered into a settlement agreement (the Settlement Agreement) whereby Licensee would fulfill various requirements in exchange for probation. Licensee agreed, among other things, to a one-year probationary period during which he would pay costs and a penalty, successfully complete 42 approved hours of continuing education, and submit to monitoring for at least four hours per quarter.

{5} The effective date of the Settlement Agreement was specifically identified in the agreement as the date upon which the Board approved the agreement. Although the Board approved the agreement on November 4, 2004, formal notice was not personally served upon Licensee. The Board relies upon evidence of Licensee's communications through his attorney and his behavior (in the form of partial compliance with provisions of the Settlement Agreement) to infer that Licensee had actual notice of the Board's approval no later than November 15, 2004. Additionally, the Board provided Licensee with a list of approved courses for continuing education and with the name of a monitor.

{6} It is undisputed that Licensee failed in the eyes of the Board to fulfill his obligations under the Settlement Agreement prior to November 15, 2005, the deadline for compliance. Consequently, on November 21, 2005, the Board summarily suspended his license as per the Settlement Agreement, which states:

[I]f the Board receives credible information that [Licensee] has violated ... this Settlement Agreement, after it has been approved by the Board, the Board may summarily suspend [Licensee's] license pending a hearing which shall (a) be held at the earliest practicable date and (b) shall be conducted pursuant to the Uniform Licensing Act. If the Board finds that [Licensee] has violated this Settlement Agreement, the Board may revoke or suspend [Licensee's] license, impose a fine, and/or take any other disciplinary action described in the Uniform Licensing Act.

A hearing was held on December 14, 2005, in front of a hearing officer, as per the Uniform Licensing Act, NMSA 1978, §§ 61-1-1 to -33 (1957, as amended through 2003).

{7} After considering the testimony and evidence, the Board suspended Licensee's license for two years. Licensee appealed to the district court, which reversed the Board's decision.

STANDARD OF REVIEW

{8} The district court and this Court both sit as appellate courts in reviewing a decision of the Board. Accordingly, the same standard of review is applicable. We both review an administrative order to determine whether the order is arbitrary, capricious, or an abuse of discretion; not supported by substantial evidence in the record; or otherwise not in accordance with the law. See NMSA 1978, § 39-3-1.1(D) (1999); Rule 1-074(Q) NMRA; Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm'n, 2003-NMSC-005 ¶ 17, 133 N.M. 97, 61 P.3d 806. A review of an administrative agency's decision is not a trial de novo. Rio Grande Chapter of the Sierra Club, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806. We will not disturb the agency's factual findings if supported by substantial evidence, although we engage in a whole record review. Herman v. Miners' Hosp., 111 N.M. 550, 552, 807 P.2d 734, 736 (1991). In our review of an agency's decision, we are limited to consideration only of the facts presented to the agency. See Zamora v. Vill. of Ruidoso Downs, 120 N.M. 778, 783, 907 P.2d 182, 187 (1995). We do not, however, defer to the agency's or district court's conclusions of law, which are reviewed de novo. Rio Grande Chapter of the Sierra Club, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806.

{9} "`Substantial evidence' is evidence that a reasonable mind would regard as adequate to support a conclusion." Regents of the Univ. of N.M. v. N.M. Fed'n of Teachers, 1998-NMSC-020, ¶ 17, 125 N.M. 401, 962 P.2d 1236 (citation omitted). It is only "[i]f the agency's factual findings are not supported by substantial evidence, [that] the [reviewing] court may adopt its own findings and conclusions based upon the information in the agency's record." Id.

THE BOARD'S DECISION

The Settlement Agreement

{10} Licensee argues that the Board went outside of its authority when it issued its decision to "suspend [Licensee's] license" because nothing in the Board's findings indicates that Licensee committed any of the thirteen violations under Sections 61-30-15(A) and (B) that require such suspension. We hold, however, that Licensee waived this objection by voluntarily agreeing to the Board's authority in this matter.

{11} The Settlement Agreement permits the Board to determine whether Licensee violated the agreement and, if Licensee did violate the agreement, to revoke or suspend Licensee's license, impose a fine, and/or take other disciplinary action described in the Uniform Licensing Act. Licensee therefore specifically agreed to the Board's authority and was represented by counsel when he did so.

{12} It is well settled law that this Court generally enforces settlement agreements. See Envtl. Control, Inc. v. City of Santa Fe, 2002-NMCA-003, ¶ 19, 131 N.M. 450, 38 P.3d 891; Bd. of Educ. for the Carlsbad Mun. Sch. v. State Dep't of Pub. Educ., 1999-NMCA-156, ¶ 14, 128 N.M. 398, 993 P.2d 112. An agreement of settlement will not be set aside just because it later proves to have been unwise or unfortunate for one party to enter into the agreement. Envtl. Control, Inc., 2002-NMCA-003, ¶ 19, 131 N.M. 450, 38 P.3d 891. Instead, we have consistently held that in negotiating a settlement contract, the parties are bound by its provisions and must accept both the burdens and benefits of the contract. Cortez v. Cortez, 2007-NMCA-154, ¶ 14, 143 N.M. 66, 172 P.3d 615, cert. granted, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d 764. As we have pointed out,

[o]ur duty is to enforce the terms of the contract which the parties made for themselves. Because of their favored status, there must be a compelling basis to set aside a settlement agreement. We will allow equity to interfere with enforcing clear contractual obligations only when well-defined equitable exceptions, such as unconscionability, mistake, fraud, or illegality justify deviation from the parties' contract.

Id. ¶ 14 (internal quotations marks and citations omitted).

{13} We have not been presented with any evidence in this case intimating that the Settlement Agreement falls within any exception to our policy of upholding these types of contracts. It appears that both parties negotiated in good faith, were represented by counsel, and received some benefit from entering into the agreement. We therefore accept the validity of the Settlement Agreement and hence the Board's authority to hold a hearing in this matter. We limit our discussion to the Board's decision, which was to suspend Licensee's license because Licensee violated the Settlement Agreement.

The Board's Decision

{14} At the hearing in December 2005, Licensee took the position that because he had not received notice of the Board's approval of the Settlement Agreement until January 2005, his one-year probationary period should have run through January 2006. By the end of either December 2005 or January 2006, Licensee appears to have made the requisite payments, obtained the necessary continuing education credits, and otherwise satisfied the terms of his probation. Accordingly, Licensee argued that he complied with the terms of the Settlement Agreement such that there was no basis for the suspension of his license.

{15} The hearing officer disagreed and held that the twelve months commenced no later than November 15, 2004. Licensee's compliance with the requirements of the Settlement Agreement would therefore have had to occur no later than November 15, 2005. As it was undisputed that Licensee failed to fulfill the requirements by November 15, 2005, the Board found that Licensee failed to meet the requirements set out in the Settlement Agreement.

THE DISTRICT...